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688 S.W.2d 642, *; 1985 Tex. App. LEXIS 6182, **

4 of 250 DOCUMENTS

GUSTAVO RIOS, APPELLANT, v. STATE OF TEXAS, APPELLEE

No. 13-84-255-CR

COURT OF APPEALS OF TEXAS, Thirteenth District, Corpus Christi

688 S.W.2d 642; 1985 Tex. App. LEXIS 6182

February 7, 1985

PRIOR HISTORY: [**1]

On appeal from the 275th District Court of Hidalgo
County, Texas.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant challenged the
decision of the 275th District Court of Hidalgo County
(Texas), which convicted him for burglary of a habitation
with intent to commit rape.
CORE TERMS: criminal action, indictment, motion to
dismiss, arrested, commence, felony, Texas Speedy Trial
Act, diligence, arrest, police station, commencement,
detained in custody, grand jury, peace, indicted, felony
offense, failure to secure, misdemeanor, telephone call,
overruling, burden of proving, warrant of arrest, time
limitation, impartial jury, public trial, announcement,
unsuccessful, questioning, excludable, readiness
LexisNexis(R) Headnotes

OVERVIEW: Appellant sought reversal of his COUNSEL:

conviction for burglary of a habituation with intent to
commit rape based on the state's failure to comply with
his speedy trial rights. Finding merit in appellant's claim,
the court reversed his conviction. The trial did not
commence within 120 days of commencement of the
action, as required by the Speedy Trial Act (Act), Tex.
Code Crim. Proc. Ann. art. 32A.02 (Supp. 1984). The
trial court erred in concluding that the criminal action
against appellant did not commence until appellant was
indicted on March 7, 1984, rather than upon filing of the
formal complaint on February 24, 1983. The state first
secured the presence of appellant on March 14, 1984,
more than a year after the commencement of the criminal
action on February 24, 1983. Potentially applicable time
exclusions under the Act for delay resulting from
appellant's absence were limited to those specified in art.
32A.02 § 4 (4), (5, (9). The state, however, failed to
show that its failure to secure appellant's presence for
more than a year after the criminal action commenced
fell within a permissible exception, so appellant was not
accorded a speedy trial.
OUTCOME: The court reversed appellant's conviction
for burglary of a habituation with intent to commit rape,
as his speedy trial rights were violated.
Hon. Joseph A. Connors, III, Attorney at Law,
McAllen, Texas, for Plaintiff.
Hon. Theodore C. Hake, Criminal District Attorney's
Edinburg, Texas, for Defendant.
JUDGES:
Norman L. Utter, Associate Justice.
OPINIONBY:
UTTER
OPINION:
[*643] This is an appeal from a jury conviction for
the felony offense of burglary of a habitation with intent
to commit rape for which the trial court assessed
appellant's punishment at ten years in the Texas
Department of Corrections, probated for ten years. We
reverse the judgment of the trial court.
In his first and second grounds of error, appellant
asserts that the trial court erred in overruling appellant's
 Page 2
688 S.W.2d 642, *; 1985 Tex. App. LEXIS 6182, **

motion to dismiss for want of a speedy trial. appellant voluntarily went with a police officer to the
The offense, for which appellant was convicted, was Mission
committed on February 18, 1983. Later that night,

688 S.W.2d 642, *; 1985 Tex. App. LEXIS 6182, **
[*644] Police Department for questioning, after
which appellant was not arrested but was allowed to
leave. On February 24, 1983, a formal complaint was
filed in Justice of the Peace Court, which then issued a
warrant for appellant's arrest. [**2] The complaint
charged appellant with the commission of the felony
offense of Burglary of a Habitation with Intent to
Commit Rape. Appellant was subsequently indicted for
the offense on March 7, 1984, and was arrested on the
indictment on March 14, 1984. The State first
announced ready for trial on March 12, 1984. On April
2, 1984, appellant filed his motion to dismiss for want of
a speedy trial; and, a hearing on the motion to dismiss
was held on April 18, 1984. At the conclusion of the
hearing on the motion to dismiss, the trial court
overruled appellant's motion to dismiss after concluding
(1) that, based upon the authority of Davis v. State, 630
S.W.2d 532 (Tex. App. -- Amarillo 1982, no pet.), the
criminal action against appellant did not commence for
Texas Speedy Trial Act purposes until appellant was
indicted on March 7, 1984, and (2) that, since the State
made an announcement of ready for trial on March 12,
1984, within 120 days after appellant was indicted, the
State did not violate appellant's rights under the Texas
Speedy Trial Act.
In support of his first and second grounds of error,
appellant contends (1) that, for purposes of the Texas
Speedy Trial Act, TEX. [**3] CODE CRIM. PROC.
ANN. art. 32A.02 (Vernon Supp. 1984), the criminal
action against him commenced (a) at the time when he
was allegedly "detained in custody" on February 18,
1983, or, in the alternative, (b) when the formal
complaint was filed against him on February 24, 1983,
and (2) that, since the State did not announce ready for
trial until more than one year (and more than 120 days)
after both events, the trial court should have granted his
motion to dismiss. In response, the State argues (1) that,
under the authority of Davis v. State, the criminal action
against appellant commenced on March 7, 1984, when
appellant was charged by indictment with the offense or,
in the alternative, (2) that, if the action commenced at the
time of the questioning on February 18, 1983 or at the
time of the filing of the complaint and issuance of the
warrant of arrest on February 24, 1983, "thus putting the
State to the burden of proving up excusable periods, the
State has met this burden by showing due diligence to
Page 3
locate [appellant], which was unsuccessful."
The Texas Speedy Trial Act, TEX. CODE CRIM.
PROC. ANN. art. 32A.02 (Vernon Supp. 1984), in
pertinent part, provides:
Art. [**4] 32A.02. Time limitations
Section 1. A court shall grant a
motion to set aside an indictment,
information, or complaint if the state is
not ready for trial within:
(1) 120 days of the commencement of
a criminal action if the defendant is
accused of a felony;
***
Sec. 2. (a) Except as provided in
Subsections (b) and (c) of this section, a
criminal action commences for purposes
of this article when an indictment,
information, or complaint against the
defendant is filed in court, unless prior to
the filing the defendant is either detained
in custody or released on bail or personal
bond to answer for the same offense or
any other offense arising out of the same
transaction, in which event the criminal
action commences when he is arrested.
***
Sec. 4. In computing the time by
which the state must be ready for trial, the
following periods shall be excluded:
***
(4) a period of delay resulting from
the absence of the defendant because his
location is unknown and:
(A) he is attempting to avoid
apprehension or prosecution; or
(B) the state has been unable to
determine his location by due diligence;
(5) a period of delay resulting from the unavailability of
the defendant [**5] whose location is known to the state
but whose

688 S.W.2d 642, *; 1985 Tex. App. LEXIS 6182, **
[*645] presence cannot be obtained
by due diligence or because he resists
being returned to the state for trial;
***
(9) a period of delay resulting from
detention of the defendant in another
jurisdiction, if the state is aware of the
detention and exercises due diligence to
obtain his presence for trial;
(Emphasis added.)
Regarding appellant's claim that he was "detained in
custody," the record of the hearing on the motion to
dismiss reflects that, on February 18, 1983, after the
commission of the offense, Mission Police Officer Victor
Flores went to appellant's residence where, after
appellant's mother allowed him inside, Flores then
visited with appellant. There, Flores asked appellant to
go with him to the police station "to clean up his name,
to investigate the situation a little bit further" regarding
the offense. Flores testified that "I wasn't arresting him
for anything. I asked him if he wanted to go with me"
and that, if appellant had refused to go with him, "I
would probably take him out for investigation purposes
only" -- "that would have been wise."
Appellant went voluntarily to the police station with
[**6] Officer Flores; and, at the police station and after
having been given his Miranda warnings, appellant was
interrogated, fingerprinted and then taken home by
Mission Police Officer George Rangel. Officer Rangel
testified that, during the interrogation, appellant was
"free to leave if he wanted to go" and, after the
interrogation, he told appellant that "the case was going
to be thoroughly investigated and that it was going to be
sent to the District Attorney's office for their perusal to
see if we had enough evidence to prosecute" and, "if he
was going to leave town, to let us know and if he was
going to go, to let us know so we can keep in contact
with him." During that evening, appellant was neither
placed under arrest nor told that he was going to be
arrested. Further, appellant did not testify that he was
placed under arrest, that he felt that he was deprived of
his freedom or that he felt that he was not free to leave, if
he so decided. We hold that, for purposes of Art. 32A.02
§ 2(a), appellant was not "detained in custody" and,
since appellant was not arrested, the criminal action
against appellant did not commence at that time.
Appellant's first ground of error is overruled. [**7]
In his second ground of error, appellant argues that,
under the express language of Art. 32A.02 § 2(a), the
Page 4
criminal action against him commenced on February 24,
1983, the date on which the formal complaint was filed
against him in Justice of the Peace Court. As noted
above, Art. 32A.02 § 2(a), in pertinent part, provides
that "a criminal action commences for purposes of this
article when an indictment, information, or complaint
against the defendant is filed in court, . . . ." (Emphasis
added.) n1 Appellant acknowledges the holding in Davis
v. State, which construes Art. 32A.02 § 2(a) and upon
which the trial court relied in overruling appellant's
motion to dismiss, but appellant contends that the
holding in Davis v. State is erroneous.
n1 We note that TEX. CODE CRIM. PROC.
ANN. art. 15.04 (Vernon Supp. 1984) defines the
term "complaint" as follows:
Art. 15.04. Complaint
The affidavit made before the
magistrate or district or county
attorney is called a "complaint" if
it charges the commission of an
offense.
TEX. CODE CRIM. PROC. ANN. art. 15.05
(Vernon Supp. 1984) sets forth the requisites of a
valid complaint, upon which a magistrate
pursuant to TEX. CODE CRIM. PROC. ANN. art.
15.03 may issue a warrant of arrest or a
summons. Neither Art. 32A.02 § 2(a) nor any
other provision of the Texas Code of Criminal
Procedure regarding the term "complaint"
designates that term as having reference to
misdemeanor prosecutions only. Compare Ex
Parte Hyett, 610 S.W.2d 787 (Tex. Crim. App.
1981); Washington v. State, 531 S.W.2d 632 (Tex.
Crim. App. 1976); Austin v. State, 531 S.W.2d
615 (Tex. Crim. App. 1975); Chapple v. State,
521 S.W.2d 280 (Tex. Crim. App. 1975) (in non-
capital felony cases where a defendant waives his
right to be tried on an information pursuant to
TEX. CODE CRIM. PROC. ANN. art. 1.141
(Vernon Supp. 1984), the information need not be
but may be based upon a complaint).
[**8]
In Davis v. State, the Amarillo Court of Appeals
held:

688 S.W.2d 642, *; 1985 Tex. App. LEXIS 6182, **
[*646] Under Article 1, Section of
the Texas Constitution and Article 1.05 of
the Texas Code of Criminal Procedure, a
person shall not be "held to answer" for a
felony unless on indictment by a grand
jury. When we read Section 1(1) and
Section 2(a) of the Texas Speedy Trial Act
in light of the mandatory language of
Article 1, Section 10 of the Texas
Constitution and Article 1.05 of the Texas
Code of Criminal Procedure, we must
conclude that, as used in Section 2(a), the
word "indictment" refers to felony
prosecutions and the words "information
or complaint" refer to misdemeanor
prosecutions. It follows that, for the
purposes of the Texas Speedy Trial Act, a
felony criminal action commences when
an indictment is filed in court or when the
accused is arrested.
Davis v. State, 630 S.W.2d at 538-539. (Emphasis
added.) n2 Thus, the Amarillo Court of Appeals in Davis
v. State, held that, in felony prosecutions, the filing of a
complaint does not commence the "criminal action" for
purposes of Art. 32A.02 § 2(a).
n2 TEX. CONST. Art. 1 § 10 provides:
§ 10. Rights of accused in
criminal prosecutions
Sec. 10. In all criminal
prosecutions the accused shall
have a speedy public trial by an
impartial jury . . . and no person
shall be held to answer for a
criminal offense, unless on an
indictment of a grand jury, except
in cases in which the punishment
is by fine or imprisonment,
otherwise than in the penitentiary,
...
TEX. CODE CRIM. PROC. ANN. art. 1.05
(Vernon Supp. 1984) provides:
Art. 1.05. Rights of Accused
In all criminal prosecutions
the accused shall have a speedy
public trial by an impartial jury . . .
. No person shall be held to
Page 5
answer for a felony unless on
indictment of a grand jury.
[**9]
Contrary to Davis v. State, we hold that, under the
clear intent of the express language of Art. 32A.02 §
2(a), a criminal action, whether classified as a felony or
misdemeanor prosecution, commences "when an
indictment, information, or complaint against the
defendant is filed in court, . . ." We agree with the dissent
in Davis v. State filed by Chief Justice Reynolds wherein
he wrote:
Notwithstanding the majority's
citation of Texas constitutional and
statutory provisions for the proposition
that no person shall be finally tried and
convicted of a felony except upon
indictment by a grand jury, unless waived,
none of those provisions undertake to say,
and do not say, that the filing of a
complaint accusing one of a felony
offense with a justice of the peace is not
the commencement of a prosecution. In
fact, it has been held, long ago and
recently, that the filing of a complaint
accusing one of a felony offense with a
justice of the peace is the initial step in the
commencement of a prosecution under
Texas law. Baskins v. State, 75 Tex.
Crim. 537, 171 S.W. 723, 725 (1914); Ex
parte Clear, 573 S.W.2d 224, 228
(Tex.Cr.App. 1978).
Indeed, the very wording [**10] in
Clear, paraphrased as to date and crime,
exactly expresses the situation before us
thusly: The complaint filed against
appellant on 10 July 1975 was the initial
step in a criminal action instituted to
secure his conviction and punishment for
the crime of arson. Id. So, the appellant
became, within the meaning of Marion,
an "accused" on 10 July 1975 when the
complaint was filed, and the length of
delay is measured from that date. Arivette
v. State, 513 S.W.2d 857, 861 (Tex.Cr.App.
1974).
Davis v. State, 630 S.W.2d at 541.
Under our interpretation of Art. 32A.02 § 2(a), the trial
court erred in concluding that the criminal action against
 Page 6
688 S.W.2d 642, *; 1985 Tex. App. LEXIS 6182, **

appellant did not commence until appellant was indicted In further support of our holding, we note the
on March 7, 1984, and not when the formal complaint following language from Bueno v. State, 677 S.W.2d 261
against him was filed on February 24, 1983. (Tex. App. -- Corpus Christi 1984, no pet.), a case which
involved a felony prosecution for possession of heroin:

688 S.W.2d 642, *; 1985 Tex. App. LEXIS 6182, **
[*647] Appellant was charged with
the offense which forms the basis of this
appeal on January 4, 1983, when the
complaint was first filed. [**11] This
was the day when the clock began to tick.
Lyles v. State, 653 S.W.2d 775
(Tex.Crim.App. 1983) (en banc).
Bueno v. State, 677 S.W.2d at 266. (Emphasis added.)
As set forth above, the State argues that, if the
criminal action against appellant commenced at the time
of the filing of the complaint on February 24, 1983, "thus
putting the State to the burden of proving up excusable
periods, the State has met this burden by showing due
diligence to locate [appellant], which was unsuccessful."
In our case, the State first secured the presence of
appellant on March 14, 1984, more than a year after the
commencement of the criminal action on February 24,
1983. The State first announced ready for trial on March
12, 1984, also more than a year after the commencement
of the criminal action on February 24, 1983.
The State may be ready for trial from an evidentiary
standpoint and yet not ready for trial under Art. 32A.02
for failure to secure the presence of the defendant. The
presence of the defendant is a readiness burden, which
falls upon the State. This is clearly indicated by the fact
that the Texas Speedy Trial Act tolling exceptions
include three instances [**12] in which the State will
not be charged with delays due to the defendant's
absence. Lyles v. State, 653 S.W.2d 775 (Tex. Crim. App.
1983); Newton v. State, 641 S.W.2d 530 (Tex. Crim. App.
1982).
In this case, the potentially applicable time
exclusions under the Texas Speedy Trial Act for delay
resulting from a defendant's absence are those quoted
above in Art. 32A.02 § 4 (4), (5) and (9). Because the
statute specifically excludes time periods when the
defendant is absent under the limited circumstances
Page 7
stated in Art. 32A.02 § 4 (4), (5) and (9) quoted above, it
is obvious that the mere absence of the defendant is a
circumstance that, except for those specific statutory
exclusions, does not toll the statute. Lyles v. State, 653
S.W.2d at 778; Newton v. State, 641 S.W.2d at 531.
Appellant's absence and the State's failure to secure
appellant's presence for more than a year after the
criminal action against him had commenced effectively
rebutted the prima facie showing of readiness upon the
State's announcement of ready on March 12, 1984.
Upon rebuttal by demonstration that the State was
not ready for trial within the time allowed by Art.
32A.02, the burden shifted [**13] back to the State to
prove that there were excludable periods of delay that
would extend the initial time limitation. Newton v. State,
641 S.W.2d at 531.
Regarding appellant's absence and the State's failure to
secure appellant's presence, the record of the hearing on
the motion to dismiss reflects the following: Mission
Police Officer George Rangel testified that Rangel
received the arrest warrant issued by Justice of the Peace
Arturo Leal on February 24, 1983. Soon afterwards,
Rangel went to appellant's home to arrest appellant; at
that time, appellant was not home and Rangel told
"whoever was at the door when he gets back in town,
have him call me." At the door of appellant's home,
Rangel had been told that appellant "was somewhere in
town working or looking for a job or something of that
nature." A week or two later, Rangel received a telephone
call from McAllen attorney Joe Chapa regarding
appellant and was told that appellant "could turn himself
over" to Rangel. Rangel testified that, "after Mr. Chapa
told me that he was going to bring him in, I took Mr.
Chapa's word that he was going to bring him in, which
he never did, and I stopped looking for him. Then
maybe about [**14] a week or so later, his secretary
called me and asked me if Mr. Rios had turned himself in
and I advised her that he hadn't." After receiving the
telephone call from Chapa's secretary, Rangel then
started looking for appellant again. Rangel had heard
that appellant "was around" and "that he was living
behind the

688 S.W.2d 642, *; 1985 Tex. App. LEXIS 6182, **
[*648] bus station on the 800 Block of Conway"
and, after having gone there, Rangel "couldn't find him,
nobody was home." Rangel also went to appellant's
mother's house "a couple of times." Rangel never
received a telephone call from appellant at the police
station.
At the hearing on the motion to dismiss, appellant
gave the following testimony: On February 18, 1983,
appellant lived at his mother's house in Mission and,
after February 18, 1983, appellant never moved from his
mother's house into another home. Appellant never lived
in "back of the bus station." When Rangel came to arrest
him at his mother's house, appellant was "out of town" in
Reynosa, Mexico, visiting his uncle. He visited his uncle
there "about three hours" and went "back home to
Mission" to his mother's house. Appellant went to the
police station "a couple of times" and "both times Rangel
was not [**15] there." Appellant left a message "once,
the first time," and never turned himself into Officer
Rangel "because he was never there when I went." After
appellant spoke with McAllen attorney Joe Chapa,
appellant went to see Rangel thereafter, but "he wasn't
there." Sometime after February 18, 1983, appellant saw
Rangel at the "Quintanilla Store," where Rangel waived
"hi" to appellant and, when he left, Rangel said
"Goodbye." Also sometime after February 18, 1983,
Page 8
appellant saw Rangel driving "from McAllen to Mission"
at the intersection of Ware Road and Business Highway
83 in Mission. Rangel's car "was going about 30 or 40
miles per hour" and Rangel "took his eyes off the road
and turned his head all the way, you know, towards me."
Since February 18, 1983, until the time he was arrested
on March 14, 1984, appellant did not "try and hide" from
the police so that he would not be arrested in this case.
At the hearing on the motion to dismiss, Mission
Police Officer Victor Flores testified that he did not know
why appellant was not arrested from February 18, 1983,
until March 14, 1984.
After reviewing the evidence presented at the
hearing on the motion to dismiss, we conclude that the
[**16] State failed to discharge its burden under Art.
32A.02 § 4 "to prove there were excludable periods of
delay that would extend the initial time limitation." See
Newton v. State, 641 S.W.2d 530 (Tex. Crim. App. 1982).
The trial court erred in overruling appellant's motion to
dismiss. Appellant's second ground of error is sustained.
We have considered all of appellant's remaining
grounds of error and they are all overruled. The
judgment of the trial court is REVERSED, and the
indictment is ordered dismissed.
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